107 So. 841 | Ala. | 1926
The bill was for sale for partition of lands among joint owners. The effect of the recent amendment of the statutes was discussed in Wood v. Barnett,
To maintain a bill in equity for partition or the sale of lands for division, the party complainant must have a title or a perfect equity in an interest in said lands. Code 1907, §§ 5203, 5222; Code 1923, §§ 99 9303, 9322; Stein v. McGrath, 30 So. 792,
Appellee claims title through a deed purporting *383
to have been executed by Andrew Elliott in 1878, who is shown by appellee (as a witness in his own behalf) to have been in the possession of the land. And the deed from Parmalee to Elliott is of date October 31, 1874. If it was shown that the land was a part of the homestead of Elliott at the date of his conveyance, and his wife failed to join therein, the same would be void. The fact that it was a homestead is not shown, and the conveyance was of a larger tract, if it included a homestead. Goodloe v. Dean, 8 So. 197,
It is established in this jurisdiction that a deed to the homestead without the wife joining therein, or to which the signature of the wife is not properly acknowledged, passes no title. Lewis v. Lewis,
The deed to Smith passed the legal title, subject to the dower right of the wife, which was extinguished by her conveyance, and certainly by her death.
Neither of the parties shows title back to the United States. Their respective possessory acts are important in determining their respective rights. The possession of the parties was not inconsistent with that of joint ownership. The rent notes of Smith to Phillips were those of a tenant in common renting from a cotenant, and when the relation terminated by expiration of the rental period, Smith was restored to his former position and right as a tenant in common. Long v. Grant, 50 So. 914,
The decree of the circuit court, in equity, is in error in holding:
"That the complainant is entitled to have paid to him out of the proceeds of the sale of the land an amount equivalent to one-half of all rents which have been received by any of the parties since the complainant became a tenant in common with the respondents, but not until after taxes which have been paid by the respondents on said land have been deducted from such proceeds."
The allowance of accounting for use or rents was not in accord with the authorities. There was no actual ouster by a joint tenant, or a depreciating of the corpus of the joint estate by its use. As to rents allowed the decree is corrected. O'Connor v. Brinsfield,
The decree of the circuit court, in equity, as corrected, is affirmed.
Corrected and affirmed.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.